Second Opinions

No, this is not a blog about medicine. It's Sanford Hausler's blog about the United States Court of Appeals for the Second Circuit and its opinions. The Court doesn't know about this, but I don't think it would mind.

Friday, March 31, 2006

A Star in Town. Since the Second Circuit is the most important commercial law federal court in the country, it should be no surprise that national appellate stars appear before it. Nevertheless, I have not noticed Carter Phillips's name on a Second Circuit decision as counsel (or anything else) in a while.

Phillips represented Tribune Televison Co. in Ellis v. Tribune Television Co. Tribune owned both television stations and a newspaper in the Hartford, Connecticutt area, in violation of FCC rules. Tribune had received several temporary waivers of the rules and has applied for a permanent waiver, but when the last temporary waiver had expired and the application for a permanent wavier was pending, Neil Ellis, a Hartford resident, brought suit under 47 U.S.C. 401(b).

Tribune moved to dismiss the action on the ground that the FCC had revised its rule prohibiting ownership of both television stations and newspapers in the same geographic area and that, under the new rule, its cross-ownership was legal. It also argued that the factual and legal issues involved in the case were not ripe because the FCC had not acted upon Tribune's application for a permanent waiver. Tribune finally argued that the doctrine of primary jurisction required dismissal in light of the administrative proceedings before the FCC.

Ellis moved for summary judgment.

While the motions were pending, implementation of the FCC's new cross-ownership rule had been stayed by the Third Circuit.

The District Couirt denied Tribune's motion and granted summary judgment in Ellis's favor.

The Second Circuit reversed, holding that the "district court erred in failing to recognize the FCC's primary jurisdction in this matter." The Court vacated the District Court's decision and remanded the case to the District Court with instructions to dismiss.

Wednesday, March 29, 2006

Supreme Court Practice. The newest issue of The Journal of Appellate Practice and Process has a number articles on Supreme Court Advocacy: Acquiring the Necessary Experience. This is a topic of great interest to me, given my special interest in appellate advocacy and Supreme Court advocacy being at the top of the heap of that discipline. There is a preface by David C. Frederick, the author of Supreme Court and Appellate Advocacy. It is interesting, but it leans too much to the modern belief that Supreme Court advocacy is best done by Supreme Court specialists. While there is a lot to be said for that school of thought, the idea that you should stay away from the Supreme Court unless you've worked for the Solicitor General or some advocacy group that appears before the Court often is hard to swallow. As lawyers, we often deal with issues in areas of law, which we are new to. We might even go to Courts that we have never been to before. Should a lawyer, no matter how experienced, never take on an antitrust case because he or she is not an antitrust expert?

Fortunately, there is a growing literature on Supreme Court practice, Supreme Court oral arguments can be downloaded off the internet, and examples of cert petitions and merits briefs from the Court are readily available. (See here and here, for instance.) So while a practioner might give serious thought before taking on a case before the Supreme Court (assuming he or she is lucky to get one), I would argue that it is something that can be done without being an experienced Supreme Court practitioner.

I shouldn't give you the impression that Mr. Frederick only speaks of this subject; indeed, it is only a subtext, which I pick up because I am sensitive to it. Although I have filed amicus briefs (both at the petition stage and the merits stage), cert petitions and oppositions to certiroari, I have never appeared before the Court . . . yet. And I refuse to be deterred.

There is an article on the Stanford Supreme Court Clinic run by Tom Goldman, an experienced Supreme Court advocate who blogs at SCOTUSblog, Amy Howe, his wife and partner, and Pamela Karlan of Stanford. That clinic is only of use to attorneys who wish to appear before the Court if you are a student at Stanford, in which case it is excellent. If you have a case that might merit Supreme Court review but which your client cannot afford, the clinic might take the case, but you are basically going to be handing it off to the students and the instructors. But since the instructors (Goldman, Howe and Karlan) are top notch, it certainly would good for the client.

Frederick also mentions that the Georgetown Law Center's Supreme Court Institute provides free moot courts if you are arguing before the Supreme Court, provided you are the first attorney on a case to get in touch with it. I expect that that is a very helpful service to an attorney, whether experienced or not.

I have not read the other articles in the issue (although I'm pretty much through the one on the Stanford Supreme Court Clinic), and I may have more to add in another post. We'll see.

Monday, March 27, 2006

Another new blog. All right, it's not really new. It's been up and running since last November. But it's new to me. Sui Generis, a New York law blog, written by Nicole Black of Rochester, New York, is definitely worth viewing. Don't take my word for it. See for yourself.

By the way, in the interest of full disclosure, Nicole has been kind enough to mention this blog in an article entitled "Use of Law Blogs Is On th Rise" in the Daily Record. She's posted a link to the article here.

New blog. The Second Circuit Sentencing Blog has appeared to deal with substantive cases on sentencing law in the Second Circuit. Since I don't usually cover such cases, anyone interested in that area of the law in the Second Circuit might want to check it out.

Reply briefs. I had stated a couple of weeks ago, that I would be blogging about issues of general interest to appellate lawyers. This is the first such post. I have been reading Judge Ruggero J. Aldisert's Winning on Appeal: Better Briefs and Oral Arguments. Judge Aldisert makes a statement that I have also heard from other jurists, but with which I could never agree. He suggests that reply briefs should only be filed in very limited circumstances. From the judge's point of view, I can understand that less paper is better than more paper. But from an attorney's point of view, it makes no sense. The appellee, since he files his brief after the appellant, get's a chance to comment on the points made by the appellant. The appellant, however, if no reply brief is filed, never gets a chance to take issue with the appellee's points (especially if there is no oral argument). In most cases, the appellee will make arguments that are worth rebutting in some way. I surely agree that a reply brief should not be filed if its only purpose is to repeat what is said in the appellant's initial brief. But if no answer can be made to the appellee's brief, then the appellant probably should deserves to lose the appeal.

Unwaiving a waived right of appeal. The Second Circuit, in Campusano v. United States has decided the issue of whether a criminal defendant, who instructs his attorney to file a notice of appeal despite a waiver of his right to appeal in his plea agreement, has suffered per se ineffective assistance of counsel if his attorney fails to do so.

Campsano's plea agreement contained a provision that he would not appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range.of 108-135 months. He was sentenced to 108 months. He twice instructed his attorney to file a notice of appeal, but his attorney did not do so. He then moved, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence on the basis of ineffective assistance of counsel. Campano argued that the failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice was required.

The District Court denied Camuosano's motion, holding that the rule that the failure to file a notice of appeal constitutes per se ineffective assistance unless the defendant asks his attonrey to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver. Campusano appealed.

The Second Cirucit reversed. It noted that while plea waivers were enforceable in most cases, "important constitutionsal rights require some exceptions to the presumptive enforceability of a waiver." These rights are endangered when an attorney fails to file a notice of appeal. The Court remanded the case to the district court for a determination of whether Campusano in fact instructed his attorney to file an appeal. If he did give such an instruction, he is to be allowed a direct appeal.

Tuesday, March 21, 2006

Quattrone wins! Frank Quattrone's conviction was vacated because of erroneous jury instructions. The Court also decided that Judge Richard Owen should not retry the case (if it is retured), but should be assigned to a new judge. The decision in United States v. Quattrone can be found at the Second Circuit website. The decision was issued on March 20, 2006.

Friday, March 17, 2006

Upcoming. Judge Batts of the Southern District of New York dismissed an action brought by the City of New York against internet cigarette sellers. Judge Batts held that the City had failed to plead a proper case under RICO. The City has said that it plans on appealing to the Second Circuit. An article on this case appears in today's New York Law Journal. It may not be available to you on-line if you are not a subscriber. (Sorry.)

Thursday, March 16, 2006

Privilege. Francia Collazos was in prison and kept a journal. Part of the journal involved conversation she had with her attorney. Part involved incidents with defendant Nicholas DeFonte. DeFonte found out about the existence of the journal and subpoenaed it. Collazos moved for a protective order on the ground that the journal was privileged. The district court denied the motion.

The Second Circuit held that those portions of the journal that described conversations with her attorney were privileged. The other sections were privileged if they set out material she intended to discuss with her counsel. The Court remanded the case for a hearing as to whether the journal fell within the scope of the privilege as it set out in its decision. The decision in United States v. DeFontecan be found at the Second Circuit website. It was decided on March 15, 2006.

Thursday, March 09, 2006

Certified questions to Connecticut.Northfield Ins. Co. v. Derma Clinic Inc. involved allegations of sexual assaults by a masseuse. The plaintiffs in those actions also sued the massage company and its onwer. The company and owner were sued for failing to advise the plaintiffs in these actions that there had been complaints against the employee, failure to investigate the allegations, continuting to employ the employee, failing to report the employee to the proper authorities and other claims stemming from these allegations.

The company and its owner relied on two insurance companies to cover their defense against the claims. The first policy was a professional liability policy and covered the company and its executive officers and directors (but only with respect to their duties as the company's officers and directors. The policy describes the business of the company as "massage therapist." This policy exluded any damages arising out of any dishonest, fraudulent, criminal or malicious act or omission of any insured or "employees."

The second policy on which the company and its owner relied was a commerical general liability policy. The policy excludes coverage for bodily injury arising out of the rendering or failure to render any professional services, including bu t not limited to . . . massage.

The Insurance Company disclaimed coverage and commenced a declaratory judgment, seeking a determination that their insurance policies did not obligate it to defend or indemnify the company.

The Insurance Company moved for summary judgment, and the District Court granted the motion, holding that neither policy covered the claims.

he Second Circuit certified four questions to be answered by the Supreme Court of Connecticut. The questions are:

1. In a policy with multiple coverage parts, does a criminal acts exclusion in the Commerical Crime Coverage Form apply to disputes arising under the Commercial General Liability Form?

2. Can an employee's pleas of nolo contendere and the resulting conviction be used to trigger an insurance policy's criminal acts exclusion?

3. When applied to the business of massage therapy, does the term "professional services" include acts ancillary to the business of a massage therapist, e.g., the investigating, training, monitoring, supervising of masseurs?

4. Under the language of the commercial coverage policy, do the negligence claims against the company and its owner arise out of the rendering of professional services when the underlying acts involve physical and sexual assualts during the performance of a message.

Monday, March 06, 2006

Rule 32.1. Howard Bashman, of How Appealing fame, has written an article on an attempt by opponents of proposed Rule 32.1 of the Federal Rules of Appellate Procedure, which would allow for the citation of "unpublished" opinions, to limit the effect of the rule by making the rule applicable only to such decisions issued after January 1, 2007. His article (on Law.com) can be found here.

Friday, March 03, 2006

To the Majors. Tom Goldstein, who has invented the small firm Supreme Court practice (and is one of the few able to maintain such a firm), is leaving his firm of Goldstein & Howe and heading for Akin, Gump, Strauss, Hauer & Feld. Goldstein & Howe will become Howe & Russell. for more info, check this post. As one in awe of Tom, I wish him the best of luck.

Wednesday, March 01, 2006

Not Ex Post Facto. The Second Circuit has held that it does not violate the ex post facto clause to apply the holding of United States v. Bookerto actions that occurred before Booker was decided. This is one of those cases where the defendant was sentenced to a term longer than he would have been under the Sentencing Guidelines. The decision in United States v. Fairclough can be found at the Second Circuit website. It was decided on February 17, 2006.